Eligibility

Assessing eligibility for Legal Aid

Due to funding constraints, some limitations are placed on the granting of legal aid. We do not grant legal aid for all legal problems; for example, we cannot fund commercial or business matters.

In criminal matters there must be a likelihood of a gaol sentence. Family matters (other than an emergency) must involve a genuine dispute over children that is not resolvable by negotiation or counselling.

Certain civil disputes up to $12000 can be heard in the minor civil claims jurisdiction of the Magistrates Court where no legal representation is required. The Commission will provide free advice to assist with minor civil matters.

The Assignments Section of the Commission is responsible for assessing each application received for legal aid. It uses three broad criteria to assess an application for assistance. In addition to the means test, an application for assistance is also assessed as to its merits and also as to whether it is within the Commission's guidelines. The application must satisfy all three criteria before legal aid can be granted.

Means Test

The means test determines how much a person with any given income and assets can afford to pay for necessary legal services. The income and assets of any financially associated person are treated as if they were the income and assets of the applicant unless they are in legal conflict. A financially associated person is any person or company whom the applicant could reasonably be expected to receive money from or give money to, for example, a spouse.

Income The income test is applied to the applicant's weekly disposable income which is total income of the applicant (and any financially associated person) less income tax, housing costs, child-care costs and maintenance payments actually paid for the support of a child or former spouse. Family allowances are disregarded.

An applicant whose disposable income is less than the poverty line would be assessed at the minimum contribution level.

Assets In addition to income, the client's assets will affect their eligibility for legal aid. However, the assets test does not include the clothing, tools of trade, household effects and furniture of the average person or an average house or car.

Proof of Means You (and your spouse/defacto) must provide proof of your income and assets with your application for legal aid. This can be copies of recent pay slips over 4 weeks, a letter from your employer stating weekly income or a taxation group certificate or taxation return. A copy of a Centrelink income statement is also acceptable. As well, the Commission will need to view copies of bank statements or passbooks showing the balance over the last two months in all accounts (a teller slip stating the current bank balance is not sufficient). If you own real estate, a copy of council rates or water rates notice showing the property value must also be shown.

If these documents do not accompany the application, it will not be processed but will be sent back to you.

Statutory Charge Where you or your financially associated person own real estate, legal aid is really only a loan. Once the cost of the matter goes over $2,200, the Commission will register a charge over the property. The charge makes sure that you pay back the whole of the legal aid eventually. It applies to any real estate in which you or your financially associated person have an interest. It does not matter whether the real estate is fully paid off or whether there is still a mortgage.

Where the real estate belongs to a financially associated person only, that person's consent to the charge is necessary. If they refuse consent, legal aid will normally be stopped. If the real estate belongs to just you, or to both of you, the charge can be taken even without their consent.

When the property is sold, transferred, re-financed or further mortgaged, or when the owner dies, the full amount must be paid back. If the client wants to pay it back sooner, they can arrange this. See our information on statutory charges.

The Commission will not force the sale of the property except in very rare cases

Merits Test

The Commission must be satisfied that the legal matter involved is an appropriate expenditure of public legal aid funds. Where the matter has no reasonable prospects of success, legal aid is refused. In serious criminal matters, the existence of a "reasonably arguable" defence may suffice.

The Commission's aim is to put applicants into an equal but not better position than private individuals who, of course, risk their own funds. If it is considered reasonable for a solicitor in private practice to act in expectation of costs being recovered in due course from settlement funds, then legal aid is refused.

Guidelines

The Commission has set guidelines regarding the type of work it will handle. Legal aid is normally not provided for the following:

Divorce. A divorce application is available online from the Commonwealth Courts Portal. Help in completing the forms is available through the Commission's offices and more information is available on the Federal Circuit Court website. In circumstances where a do-your-own divorce is not appropriate, such as where the applicant has language difficulties or if the divorce is particularly complex, then legal aid may be available.

Family property settlements, unless there are special circumstances.

Traffic offences, including drink driving,unless there is a real risk of imprisonment or the applicant has special circumstances that justify assistance.

Conveyancing

Probate or claims on deceased estates

Complaints against lawyers. These should initially be referred to the Legal Profession Conduct Commissioner for investigation. Legal assistance may be subsequently granted where the available evidence justifies legal proceedings.

Complaints against Police. These should initially be referred to the Police Ombudsman for investigation. Legal assistance may subsequently be granted where the available evidence justifies legal proceedings.

Defamation cases

Neighbour and Fencing Disputes

Bankruptcy Act matters

Applying for or defending Intervention Orders. However, legal aid may be available to clients charged with a breach of an Intervention Order. The Police can assist clients to apply for an order. The Legal Services Commission has a Domestic Violence Worker available to assist persons where domestic violence is a factor.

Special/Exceptional Circumstances

The specific guidelines can be waived in cases involving special or exceptional circumstances. These can include undue hardship, financial or otherwise, to the applicant if legal assistance were not provided, or emergency situations in which the liberty, livelihood, possessions or physical and mental well being of the applicant and any dependants are threatened.

Funding Caps

Where a case is identified to be an "expensive case", no aid or extension of existing aid beyond the level of the funding cap will be granted. In criminal cases, an "expensive case" is in excess of $50,000 or $100,000 where more than one party is receiving legal aid. Similarly, in family law cases, an "expensive case" is in excess of $15,000 for either the husband or wife and $18,000 for the child's representative (for matters commenced after 4 April 2005).